Policy Issues

Supporters and opponents of the 109th Congress and 110th Congress legislation have raised a number of arguments for and against the proposals. For example, proponents of the exemption proposed in these bills, representing the agriculture industry, especially livestock and poultry producers, say that animal manure has been safely used as a fertilizer and soil amendment by many cultures all over the world for centuries and thus should not be considered a hazardous substance. Opponents — including environmental activists, public health advocates, and state and local governments — agree that when properly managed, manure has beneficial uses. Superfund's reporting and cost recovery requirements do not threaten responsible operators who manage manure as a valuable fertilizer, they say. However, these groups say that when improperly managed and in the massive amounts produced at today's large feedlot operations, animal waste can release a number of polluting substances to the environment. Releases to surface water, groundwater, and the atmosphere may include nutrients, organic matter, solids, pathogens, volatile compounds, particulate matter, antibiotics, pesticides, hormones, gases that are associated with climate change (carbon dioxide and methane), and odor.

Proponents of the legislation argue that neither Superfund nor EPCRA was intended by

Congress to apply to agriculture and that the pending legislation would simply clarify congressional intent. CERCLA exempts "normal application of fertilizer" from the definition of "release" and also exempts releases of "naturally occurring organic substances." Animal waste arguably was intended to be covered by these existing exemptions, they say. Opponents respond that there is little firm evidence either way on this point, as there is limited legislative history concerning this language. The exemption for "normal application of fertilizer," enacted in CERCLA in 1980, applies to application of fertilizer on crops or cropland for beneficial use, but does not mean dumping or disposal of larger amounts or concentrations than are beneficial , 12 to crops.

EPA has not issued guidance to interpret what constitutes "normal application of fertilizer," and the only court decision so far addressing this issue (the vacated 2003 City of

Tulsa case discussed above) held that neither plaintiffs nor defendants in that case had presented evidence sufficient for a fact-based determination of what constitutes "normal application." Opponents of the legislation also argue that animal manure consists of a number of substances that are nutritional and pharmaceutical elements of the feed provided to animals (trace elements, antibiotics, nutrients), and releases are the result of inadequate waste disposal, not "naturally occurring" substances and activities.

Proponents argue that enforcement and regulatory mechanisms exist under the Clean Water Act (CWA) and other media-specific statutes, such as the Clean Air Act (CAA), making it unnecessary to rely on Superfund or EPCRA for enforcement or remediation. In particular, both the Clean Water Act and Clean Air Act require that regulated facilities obtain permits that authorize discharges or emissions of pollutants. Enforcement of permit requirements has been an important tool for government and citizens to address environmental concerns of animal agriculture activities.

Opponents respond that enforcement under Superfund fills critical gaps in these other environmental laws, because not all pollutants are covered by other laws. For example, releases of ammonia and hydrogen sulfide are listed under CERCLA but are not currently regulated as hazardous pollutants under the CAA. Clean Water Act AFO permits primarily address discharges of nutrients, but not other components of manure waste (e.g., trace elements, metals, pesticides, pathogens). Moreover, neither of these laws provides for recovery of costs for responding to or remediating releases, nor for natural resource injuries. Opponents also argue that, while "federally permitted releases" are exempt from CERCLA's reporting requirements, CWA and CAA permit requirements apply only to facilities that meet specified regulatory thresholds (for example, CWA permit rules apply to about 14,000 large AFOs, less than 6% of all AFOs in the United States).13

Finally, proponents of the legislation argue that if animal manure is considered to be a hazardous substance under Superfund, farm operations both large and small potentially could be exposed to costly liabilities and penalties. Opponents note that the purpose of release reporting is to keep federal, state, and local entities informed and to alert appropriate first responders of emergencies that might necessitate response, such as release of hazardous chemicals that could endanger public health in a community. The exemption proposed in pending legislation, they point out, U.S. Environmental Protection Agency, "National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs); Final Rule," 68 Federal Register 7179, February 12, 2003. would apply not only to CERCLA and EPCRA reporting requirements but also to other provisions (such as Superfund's authority for federal cleanup of releases, cleanup liability, and liability for natural resource injuries).

According to states and some other interest groups, liability, which arises when manure is applied in amounts that exceed what is beneficial to support crops, is necessary to bring about improvements in waste handling practices of large AFOs. Enacting an exemption would severely hamper the ability of government to appropriately respond to releases of hazardous substances and pollution caused by an animal agriculture operation, they argue. On the issue of penalties, opponents note that penalties are not available under Superfund for removal or remedial actions (except for failure to comply with information gathering and access related to a response action), regardless of whether initiated by government or a private party. CERCLA does authorize civil penalties for violation of the Section 103 reporting requirements (up to $27,500 per day), but neither of the two key citizen suit cases decided thus far (Sierra Club v.

Tyson Foods, Inc., and Sierra Club v. Seaboard Farms Inc.) involved penalties for failure to report releases.

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